How Democrats Should Fight the Battle for the Court

Mitch McConnell has said he’ll bring President Trump’s nominee to succeed Anthony Kennedy on the Supreme Court to the Senate floor before the midterm elections. There’s really nothing Democrats can do to prevent that, and they don’t have the votes to block confirmation. On a straight party-line vote, assuming John McCain is absent, Trump’s nominee would win confirmation by a 50-to-49 tally. Not exactly a resounding vote of confidence, but enough to enable the Court to plunge the nation into a morass of plutocratic rule and evangelical bigotry for decades to come.

So, is there any chance a stray Republican might cross over and vote “No”? If, as is likely, the nominee looks willing to join the four current Court right-wingers in repealing Roe or Obergefell, then perhaps Maine’s Susan Collins or Alaska’s Lisa Murkowski could be persuaded to vote against him or her. Which means that while Democrats highlight the threat to choice and gay marriage in a nationwide campaign—which could also benefit Democrats in the November election, most particularly in those affluent suburban districts that could swing Democratic—they should raise the issue to stratospheric heights in Maine and Alaska and any other state where a wavering Republican solon is to be found.

Assume, though, that Trump's pick is confirmed, and we are thereby compelled to settle into decades of legal diktats rooted in the Benedictine religious biases and the Spencerian social Darwinism of the Court's right-wingers. How should the Democrats respond to that?

First, if they retake the Senate this November, they should refuse to confirm any Trump judicial nominations. And if a few Democrats break ranks on this, the Senate leadership should do what Mitch McConnell did when President Obama nominated Merrick Garland for the Court: Refuse to hold hearings or to bring the nomination to a vote on the Senate floor. We can term this strategy the McConnell precedent.

Second, assuming the right-wing Gang of Five is firmly ensconced on the Court in 2020, and none has suddenly taken leave to meet his Maker, Democratic candidates for president should embrace what we can term the FDR precedent: Call for legislation to expand the number of justices from seven to nine. President Roosevelt advanced this strategy early in his second term, after the right-wing majority then on the Court had shot down most of the core elements of the early New Deal. Roosevelt's fear was that they would continue on that course and strike down Social Security and the National Labor Relations Act, both newly enacted.

Roosevelt's proposal drew a furious backlash, not only from Republicans but also from the Southern Dixiecrats in Congress, and he was compelled to withdraw it. But it had a real effect on the Court, which subsequently and surprisingly upheld the NLRA, Social Security, and other key New Deal legislation.

One of the problems with FDR's proposal was that he didn't introduce it—indeed, he may not have conceived it yet—when he ran for re-election one year earlier. If the Democratic presidential candidates in 2020 make it part of their platform, however, and should one of them oust Trump that year, the new president could claim that he or she had a mandate to expand the Court.

This is admittedly a controversial course of action—but even as it will mobilize Trump supporters, particularly evangelicals to turn out to vote in 2020 (which most of them will do, in any case), it could also mobilize the low-propensity voters in the Democratic base if the Democratic campaign makes clear just how much the Court's troglodytes have it in for them. Besides, it's not clear what else the Democrats could do to short-circuit decades of the Court diminishing freedoms and afflicting lives.